The Court of Appeal dismissed an executor’s appeal over a bequest of land to his nephew, the grandson of the testatrix, but varied the wording of the High Court declaration describing the entitlement.
The judgment, delivered by Ms Justice Finlay Geoghegan on 14 April 2016, concerned a clause in Elizabeth Mullen’s will giving James Mullen Junior “a small plot or piece of land of not more than half an acre to make up the site of his proposed new house should he require same”. The will was made in July 2004. Mullen died in May 2012.
The executor, James Mullen, argued that the land was intended for the construction of the house. Because his nephew had already built his home by the time Mullen died, he submitted that the nephew no longer required the plot for that purpose.
The nephew sought to uphold the High Court’s interpretation. He had said that the land was needed as a garden because his sloping house site did not allow space for one. The High Court accepted that he subjectively required the plot for that use and declared that he was entitled to select up to half an acre from the testatrix’s adjoining lands.
The Court of Appeal agreed that the word “site” was not limited to the footprint of the house and could include immediately adjacent amenity land, such as a garden. It also agreed that the words “should he require same” referred to the nephew’s own assessment of whether he needed the land for that purpose. The court concluded that the evidence before the High Court established that he did require the plot as a garden to make up the site of his home.
The appeal court said there was no dispute about the plot’s identification, which had been shown on a map attached to the High Court order. It considered that a more appropriate declaration would state that the nephew was entitled to a devise of the plot, not exceeding half an acre, identified on the map and outlined in red. The court said it was unnecessary to consider the High Court’s remaining findings or the related appeal submissions.
The appeal was dismissed except for the variation to the declaration. The Court of Appeal’s revised wording describes an entitlement to the mapped plot; it does not leave the beneficiary with a general right to select land.